Thursday, November 29, 2012

Courts - "SCOTUS Muses on Unicorns in Debating Sentencing"

Adam Liptak of the NY Times has an amusing article today (except for the attorney involved) on the oral argument yesterday in Henderson v. U.S., where the issue was:

Whether, when the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, an appellate court reviewing for “plain error” should apply Johnson v. United States’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted.

From Liptak's article (but worth reading in full):

WASHINGTON — The Supreme Court heard an unfocused argument on Wednesday from a Louisiana lawyer whose fumble at her client’s sentencing hearing was at issue in the case. The lawyer’s halting presentation put the justices in a collaborative and lighthearted mood, as they tried to puzzle out for themselves whether the sentence must stand. Unicorns figured in their analysis. * * *

In 2010, a trial judge gave Mr. Henderson, who had pleaded guilty to a gun charge, a five-year sentence instead of the roughly three-year sentence ordinarily called for so that he would be eligible for a drug-treatment program while in prison.

In 2011, the Supreme Court unanimously ruled in Tapia v. United States that extending sentences for that reason is unlawful in light of the relevant federal law, which told judges that “imprisonment is not an appropriate means of promoting correction and rehabilitation.”

It was also clear in Mr. Henderson’s case that his lawyer, Patricia A. Gilley, had not objected on this ground at his sentencing. In response to a question from Justice Ruth Bader Ginsburg, Ms. Gilley explained why she had failed to speak up. “I was not aware of that statute,” she said. * * *

Chief Justice John G. Roberts Jr. asked Ms. Gilley for her position, and she responded with a discussion of an opinion by “Justice Rehnquist.”

Chief Justice Roberts corrected her reference to his predecessor, Chief Justice William H. Rehnquist. “He was the chief justice, by the way,” Chief Justice Roberts said. “It matters to one of us.”

Ms. Gilley apologized for her error and for a similar one in one of her briefs, in which she had mistakenly referred to Justice Tom C. Clark as chief justice. “I’m not perfect,” she said and then referred to “Justice Rehnquist” again.